Appeal from the District Court of the United States, Southern District of Illinois, Northern Division; Louis FitzHenry and Charles G. Briggle, Judges.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Appellant was a contractor engaged in the construction of a hard road adjacent to appellee's farm. Appellee owned 240 acres of land upon which were located a barn (36' x 50') housing hay, harnesses, implements, etc.; a corn crib (30' x 32') in which were 300 bushels of corn; two hog houses (8' x 50') in which there was stored lumber, etc.
It was the theory of appellee, and the jury so found, that the fire which destroyed his barn and his corn crib and hog houses was caused by appellant's carelessly setting fire to a brush pile some 200 feet from the barn, the sparks from which were communicated to the barn, in some manner setting fire to the hay therein. The burning of the barn led to the firing of the other buildings.
Appellee stated his cause of action in a declaration consisting of four counts, each of which contained an averment of negligence and resulting damages. After the verdict, leave was given to file an additional count wherein appellee alleged he was the owner of 160 acres of land and that such land was depreciated in value to the extent of $7,500 by reason of the destruction of the buildings above mentioned.
As to the cause of the fire, there is much conflict in the evidence. Appellee testified that on the afternoon of the fire he and his family drove to a neighboring town to attend a funeral. Before leaving, however, he had spoken to the road boss about the burning of the brush pile, telling him the wind was in the wrong direction. He said the brush pile was ten to fifteen feet high and about two hundred feet away from the barn; that the wind was from the northeast, and was sufficiently strong to run the windmill. The evidence respecting the direction of the wind and its velocity was disputed. The fire started in the loft of the barn about fifteen minutes after the brush pile was fired.
Considering all the evidence, we think it is quite clear that the District Court was right in submitting this question to the jury. It is, at least, clear that the firing of the brush pile under the circumstances was negligent, if we accept the statement of appellee as to the location and size of the brush pile and the direction and velocity of the wind. Of course, on review, we are required to accept that version of the testimony which the jury might have adopted as true in arriving at its verdict.
More doubt exists as to whether the evidence was sufficient to support a finding that the barn was set on fire by reason of sparks from the brush pile.
While the burden of establishing the affirmative of this issue was on appellee and appellant was not required to show how the fire originated, we are, as was doubtless the jury, unable to understand how else the fire originated. There are too many coincident circumstances to avoid the inference of a causal relation.
Measure of Damages. The court charged the jury that the measure of damages was the difference between the fair cash market value of the property just before the buildings were destroyed and the fair cash market value of the property just after they were burned. He said:
"Where an injury is administered to or inflicted upon private property by reason of the negligence or carelessness of a person, the measure of damages is the difference between the fair cash market value of the property just before the injury and the fair cash market value of the property just after the injury. You have a right to take into consideration any evidence upon that fact and along that line; and you have also a right to take into consideration any other facts or circumstances in evidence as to the extent of the damages."
Appellant excepted to this instruction and now assigns error thereon. He also challenges the ruling on the allowance of an amendment to the declaration after verdict, wherein the additional count was added.
The buildings had been erected before appellee purchased the farm for the sum of $18,400 twenty-seven years before. There was no insurance on the buildings. There was evidence that appellee's farm adjacent to the road in question contained 160 acres. He also had an additional 80 acres in another tract. Several witnesses testified, over objection, to ...